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HIGH COURT MALAYA KUALA LUMPUR
NATASHA BEVERLY DENTAL SDN BHD – Appellant
Versus
ARLENA PHILIP LEE – Respondent
[Civil Appeal No: WA-12ANCvC-189-12/2023]
Based on the provided legal document, the court's decision emphasizes the importance of strictly adhering to procedural rules regarding discovery applications. The key points are as follows:
Discovery against non-parties must be pursued under the specific procedural mechanism outlined for such cases, namely O 24 r 7A of the Rules of Court 2012. Using the provisions applicable only to parties (O 24 rr 3 and 7) for non-party discovery is procedurally improper and legally unsustainable (!) (!) .
The essential elements for a valid discovery order include that the documents must be in the possession, custody, or power of the party from whom discovery is sought, and that the documents are relevant to the issues in dispute. Mere relevance or association with the documents is insufficient without establishing legal control or possession (!) (!) (!) .
Discovery should not be used as a fishing expedition. Applications must be specific, justified, and demonstrate a genuine need for particular documents. Broad, indiscriminate requests lacking specificity are considered impermissible and indicative of an attempt to engage in a fishing expedition (!) (!) (!) .
The court will scrutinize whether the documents sought are within the control of the party and whether there is a clear link between the documents and the issues in dispute. Failure to establish this control or relevance renders the discovery application defective (!) (!) (!) .
The court highlighted that the mere assertion of relevance without detailed explanation or evidence is insufficient. The applicant must substantiate the relevance and necessity of the documents at the time of filing, not afterwards (!) (!) .
When documents are held by third parties, the proper procedural route involves specific mechanisms to obtain discovery, and the applicant must demonstrate legal control or enforceable rights over those documents. Without such proof, discovery against third parties is improper (!) (!) (!) .
The application in the case was flawed because it sought broad, non-specific documents from multiple entities, including non-parties, without establishing their relevance, possession, or control. This approach was deemed a fishing expedition and was therefore dismissed (!) (!) (!) (!) .
In conclusion, the court reaffirmed that discovery applications must be carefully grounded in legal principles, with clear relevance, control, and justification, and must avoid broad or speculative requests that amount to fishing expeditions.
| Table of Content |
|---|
| 1. employment contract obligations and discovery application (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. proper legal framework for discovery against non-parties (Para 12 , 15 , 18) |
| 3. possession, custody, or power necessary for discovery (Para 20 , 24 , 27) |
| 4. discovery applications not to be fishing expeditions (Para 36 , 38 , 41) |
Introduction
[1] In this interlocutory appeal, the parties are referred to as they were before the trial court. Before the Sessions court, the plaintiff filed a notice of application (Encl 9) seeking an order for discovery of various categories of documents from the defendant pursuant to O 24 rr 3 and 7 of the Rules of court 2012. The documents sought by the plaintiff were extensive and included bank statements, accounting documents and general ledgers.
[2] Notably, the scope of the documents sought extended beyond the defendant's own records to encompass documents related to two companies that were not parties to the suit. These companies were identified as Beverly Wilshire Aesthetic Dental Centre Sdn Bhd ("Beverly Wilshire") and Beverly Dentistree Sdn Bhd ("Dentistree").
[3] The Sessions court allowed the plaintiff's application for discovery. The defendant, aggrieved by the decision of the Sessions court subsequently filed the present appeal before this court. Upon careful reading of the record of appeal and considering the submissions of both parties, I found merit in the appeal. Consequently, I allowed the appeal with costs.
Brief Background Of Facts
[4] The plaintiff had been employed by the defendant as a prosthodontist pursuant to the terms of an employment contract dated 1 June 2021 ("Employment Contract"). Under the Employment Contract, the plaintiff was obligated to provide professional services at three specified locations, namely the defendant's premises, Beverly Wilshire and Beverly Dentistree. The contractual arrangement clearly delineated the plaintiff's scope of work and the locations at which her services were to be rendered.
[5] The Employment Contract expressly provided for the plaintiff's remuneration. The plaintiff was entitled to receive a basic monthly salary of RM20,000.00. Additionally, the plaintiff was entitled to professional fees or commissions calculated at the rate of 30% of the net billed income for all cases consulted and managed by her during the relevant month. The contractual entitlement to professional fees or commissions was therefore contingent upon the plaintiff's successful consultation and management of cases within the stipulated period.
[6] The plaintiff alleged that the defendant had failed to make full and proper payment of her salary and professional fees or commissions from the commencement of her employment in June 2021. She contended that despite fulfilling her contractual obligations, the defendant had neglected to pay her the amounts due. According to the plaintiff, there remained an outstanding sum of RM35,000.00 for the period spanning from June 2021 to September 2022. The plaintiff claimed that the defendant's failure to settle the outstanding amount constituted a breach of the Employment Contract.
[7] Further, the plaintiff alleged that the defendant had continued to default on its payment obligations following her maternity leave which commenced on 19 October 2022. The plaintiff maintained that the defendant had failed to pay her salary and professional fees or commissions for the period from October 2022 to June 2023. She claimed that the total amount due and payable for the said period amounted to RM166,428.20 together with an additional 30% of the professional fees or commissions. Alternatively, the plaintiff claimed a total of RM211,428.20 for the said period. The plaintiff's claim of unpaid entitlements was premised on the terms expressly stipulated within the Employment Contract.
[8] Conversely, the defendant disputed the plaintiff's allegations. The defendant maintained that the plaintiff had failed
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